Monday, April 19, 2010

The Chief Justice's Delusions Of Grandeur And Irreplacability

So what do you know. Chief Justice Iftikhar Chaudhry has been making menacing noises about the apex court's ability to strike down any laws that parliament comes up with -- you know, the body responsible for making laws and all. That one. Even Aitzaz Ahsan -- Aitzaz Ahsan! -- is thinking they've overstepped the mark here, though of course he expressed such feelings quite diplomatically. I want to make three quick points about this before I go to bed.

First, I don't actually understand the object of the complaints here. Now, it should be noted that the Chief Justice didn't say anything explicitly against the 18th amendment, it's just that the timing of his remarks functions as a pretty good indicator of what he's talking about, or so goes the conventional wisdom. Assuming the conventional wisdom is right -- and I think it is in this case -- it raises the obvious question of what the hell his problem is. The wrangling right at the tail-end of the negotiation process of the Rabbani committee ensured the court got the tie-breaking seventh vote on judicial appointments; essentially the judiciary now controls itself in a complete and unmitigated way. So what is the problem? Am I missing something painfully obvious here? What does the judiciary have against the 18th amendment, either legally or politically?

Second, note the language he used -- "may strike down any law inconsistent with the injunctions of Islam as laid down in the Holy Quran and the Sunnah and the fundamental rights as enshrined in the constitution." Did you happen to notice what comes first and what comes second in that sentence? Wasn't the lawyer's movement once proudly held up as an example of a secular, progressive movement by a civil society eager to project their views on to the Hero, Iftikhar Chaudhry?

Maybe I'm overreacting here. But it seems to me that while the lawyer's movement and this judiciary have never been avowedly theocratic, they (a) use religious undertones very strategically and politically in their pronouncements, and (b) reflect a peculiarly eschatologicial view of political developments whereby the only thing standing between us poor sods and the end of time is this Hero, who will help deliver Justice and carry us safely to Paradise under his stewardship when the time is appropriate. I exaggerate, but only just. The point is that this judiciary has never been secular in any meaningful sense of the term, and nobody should pretend that it is. Now, maybe you think that's not a big deal, but that's a different question.

Third, as I've talked about in detail before, Iftikhar Chaudhry is prone to delusions of grandeur that basically all Pakistani public figures -- generals, politicians, even journalists -- suffer from. He really does believe in unrestricted power for the judiciary, not for its own sake per se, but because he truly believes that we, the people, need him to occupy that role. We wouldn't survive otherwise. In that sense, he is Pakistanier than mangoes in the summer, weird art on buses, and paiya jaams.

Isn't it interesting that the only figure in recent Pakistani history to willingly circumscribe their powers -- rather than bargain for more as Iftikhar Chaudhry is doing here -- is Asif Zardari? His detractors might point to the fact that he was pushed into doing so by the public and the political elite, both within his party and without. To that I would say: so? How many other people have been pushed to give up powers and still not done so? Is it unfair to say that Asif Zardari is unique in a very historical sense of doing what few others have done? And doesn't he deserve large dollops of credit for this?

I know Pakistanis in general are loath to appreciate anything Zardari does, and that's fine -- free country and all. He is at root a very unlikable man, and I get that. But instead of deifying Iftikhar Chaudhry and his power-grabbing ways, which the public has done for three years now, we might actually doff our cap in the direction of a man who has taken some serious lashings in the court of public opinion, and yet boldly given up his powers willingly (even allowing for a loose definition of "willingly"). It's something Iftikhar Chaudhry might do well to learn.

15 comments:

takhalus said...

yup as i think zahid khan said..even a chowkidar in pakistan won't give up power!

Farooq said...

Ahsan,

What does "eschatologicial" mean?

Mushahid said...

Wrong! Br. Musharaff was the first person to willingly give up power.

ps just wondering why wudnt u want to go to heaven even if it's under Br. Iftikhar's stewardship?

Vanguard said...

Before Mushi, it was Leghari who gave up power when NS brought about the amendment in his 2nd tenure about 58(2)B...

If you want to stick to Mushi, I would then say that it was Ayub who handed over power to Yahya willing that would come as first.

Hamza said...

Ahsan:

You should write about this topic in your next Express Tribune column. The CJ's increasingly bizarre behavior has gotten a free ride from much of the press, with the possible exception of one Dawn editorial.

Ahsan said...

Ok, fair enough on some of the names being bandied about here. I would only suggest that there is a difference between giving up power (i.e. you have no options left) and limiting your power while you're still in power (more courageous).

greywolf said...

it is true that ayub gave up power to yahya and it is true that zardari has given up his power (yes, unwillingly). its also true that musharraf did shed his power (he did so willingly, esp if you consider the roles he was holding after 1999 and then what roles he was holding in 2008). thats besides the point though. iftikhar chauhdry is taking the country down a very dangerous path if he chooses to interfere anymore at this point. i hope his good judgment doesnt go awry here. i would urge you as well ahsan to write about this in your next column. this issue needs to be highlighted in our press. the CJ gets it way too easy in our press.

Smci said...

(i)

His comments could obviously be construed as aimed at the 18th, as you mentioned is the conventional wisdom.

Or we could look at it as his taking the initiative, seeing this as a crucial time in the history of the Pakistan's Judiciary, to use a significant national endeavor such as the passage of a meaningful amendment, to publicly assert the balancing role of the Judiciary in lawmaking.

Maybe it's not the 18th, per se? Maybe it's just him using the attention of the 18th to remind everyone how the system ought to work. (a very gullible reading of his personality, I know)

(ii)

You're right. But I wasn't aware that the Judiciary ever made a claim to be thoroughly secular. It's the final interpreter as to the Constitutionality of new laws... a Constitution whose very Preamble begins:

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order :-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

(iii)

Say what you will about Chaudhry, and we can obviously say plenty, but he's adhering to the "you stand where you sit" approach of meting out a healthy balance between what ought to be three co-equal branches of Government.

Obviously I think he overstepped the balancing act by negotiating that the Judiciary gets to select its own members. Lack of education aside, the Parliament will (even if it doesn't do so today) reflect the mood of the people and their sense of justice and equality. A small band of old men versed in Anglo-Muhammadan law can't possibly be allowed to lock up the judicial mood of the nation indefnitely.

takhalus said...

the distinction is one of something being taken away and something one gives up. One implies compulsion and the other choice, one of the reasons for some of the flaws in the 18th amendment was that some politicians thought it was all a con..

Ahsan said...

Just a clarification: I don't have a regular column in ET, I just wrote that one because it's something that isn't really talked about in the mainstream press in Pakistan.

SMCI:

On 1, come on.

On 2, yes, fair point. My only point was that this movement and this judiciary are usually thought of in a certain way on the secular-theocratic scale, but those estimations are inaccurate, in my view.

On 3, yes, absolutely, which is what my point was in the first paragraph. Parliament is elected for the express purpose of making laws. It was passed unanimously in the NA and with a huge majority in the Senate. Where do these guys get off telling us what can be repealed and what can't?

Takhalus: Yes, that's the formulation I was going for.

skunk said...

Right on spot, the Chief Justice has apparently lost his marbles!

Riaz Haq said...

Although I do worry about an imperial judiciary in the long run, I do support Justice Chaudhry's jihad to clean up massive corruption at the top levels in Pakistani government.

Accountability must start the top, and then trickle down to the lowest levels.

http://www.riazhaq.com/2010/03/judges-jihad-against-corruption-in.html

skunk said...

Even if I agree with you Mr Riaz than why does the current Judiciary implicate Shahbaz Sharif in his numerous money laundering and other cases, surely you cannot have corruption cleaned out of Pakistan without a corrupt man sitting at the top post of the biggest province?

Also, only those people who are directly or indirectly linked to PPP are being targeted the renaming NRO cases which are 95% of the cases are not being touched. Which includes governor Sindh and leader of MQM Altaf bhai.

The judges are nothing but army stooges!

Anonymous said...

It appears none of the commenters have a legal background. Constitutionally, only that assembly has the right to change the constitution, as in the 18th Amendment, which has been elected with the explicit manadate to do so, or which clearly stated such an intention at the time of election. It's called a constitutional assembly or an assembly with a constituent-mandate. So the CJP is legally correct, no matter how he puts it. And I personally think this country deseves the kind of rulers we have: dacoits & traitors. Afterall, the entire country has been fooled into thinking that the National Assembly has reinstated the 1973 Constitution. Reality is quite opposite. Read it up. If the govt wanted to reinstate the 1973 constitution all it had to do was to present a resolution stating that "henceforth all amendments to the 1973 Constitution stand null and void".

skunk said...

Constitutionally the Constituent assembly of 1973 has vested the Constituent powers in the parliament which acts through the 2/3 of its members.

The PCO CJ Iftikhar Chaudary shared this view when 17th amendment was challenged in 2005. In fact the Supreme Court of Paksitan has rejected the Indian examples and given the verdict in favor of parliaments absolute power to change the Constitution no less than 7 times in 1974, 1976, 1990, 1997,1998,1999 and 2005.